Wednesday, August 15, 2018

New rules in India make it mandatory for institutions to use plagiarism-detection software on students’ theses and researchers’ manuscripts.

CAFC in BSG Tech gives a way around the fact inquiry of Berkheimer

The outcome

BSG Tech LLC sued BuySeasons, Inc. for infringement
of several patents related to systems and methods
for indexing information stored in wide access databases.
BuySeasons sought dismissal of the suit based on its
contention that none of the asserted patent claims were
patent-eligible under 35 U.S.C. § 101. The district court
ultimately agreed with BuySeasons and held all asserted
claims invalid as ineligible under § 101. We agree with
the district court that the asserted claims are ineligible
and, thus, affirm.

As to Alice

Section 101 provides that a patent may be obtained
for “any new and useful process, machine, manufacture,
or composition of matter, or any new and useful improvement
thereof.” This provision contains an implicit exception
that “[l]aws of nature, natural phenomena, and
abstract ideas are not patentable.” Ass’n for Molecular
Pathology v. Myriad Genetics, Inc., 569 U.S. 576, 589
(2013) (quoting Mayo Collaborative Servs. v. Prometheus
Labs., Inc., 566 U.S. 66, 70 (2012)). We determine whether
a claim covers ineligible subject matter under § 101
through a two-step test. Alice Corp. v. CLS Bank Int’l,
134 S. Ct. 2347, 2355 (2014). At step one, we “determine
whether the claims at issue are directed to one of those
patent-ineligible concepts.” Id. If so, we consider at step
two whether the elements of each claim, both individually
and as an ordered combination, “‘transform the nature of
the claim’ into a patent-eligible application.” Id. (quoting
Mayo, 566 U.S. at 78).

As to Berkheimer:

At step two, if claims are directed to a patentineligible
concept, “we consider the elements of each claim
both individually and ‘as an ordered combination’ to
determine whether the additional elements ‘transform the
nature of the claim’ into a patent-eligible application.”
Alice, 134 S. Ct. at 2355 (quoting Mayo, 566 U.S. at 78–
79). These transformative elements must supply an
“inventive concept” that ensures the patent amounts to
“significantly more than a patent upon the [ineligible
concept] itself.” Id. (quoting Mayo, 566 U.S. at 72–73)
(alteration in original). Claim limitations that recite
“conventional, routine and well understood applications in
the art” are insufficient to “supply an inventive concept.”
Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371,
1378 (Fed. Cir. 2015).
Whether a combination of claim limitations supplies
an inventive concept that renders a claim “significantly
more” than an abstract idea to which it is directed is a
question of law. Underlying factual determinations may
inform this legal determination. See Berkheimer v. HP
Inc., 881 F.3d 1360, 1368 (Fed. Cir. 2018). We have
recently held that whether a claim limitation or combination
of limitations is well-understood, routine, and conventional
is a factual question. Id. Accordingly, in cases
where the only issue at step two is whether claim limitations
are well-understood, routine, and conventional, a
genuine dispute over that issue will preclude summary
judgment that a claim is ineligible under § 101. This was
the case for some of the claims at issue in Berkheimer. In
that case, certain claims recited non-abstract features of a
digital asset management system that the specification
described as unconventional improvements over conventional
systems. Id. at 1370. While the Berkheimer defendant
argued those features were conventional, there
was a genuine issue of material fact in that case. Id.
Under those circumstances, summary judgment was
inappropriate. Id.

This case is different. BSG Tech points to the ’699,
’294, and ’652 patent specifications to argue that the
asserted claims recite unconventional features that provide
benefits over conventional prior art databases. But
the relevant inquiry is not whether the claimed invention
as a whole is unconventional or non-routine. At step two,
we “search for an ‘inventive concept’ . . . that is ‘sufficient
to ensure that the patent in practice amounts to significantly
more than a patent upon the [ineligible concept]
itself.’” Alice, 134 S. Ct. at 2355 (internal quotation marks
omitted) (quoting Mayo, 566 U.S. at 72–73). After identifying
an ineligible concept at step one, we ask at step two
“[w]hat else is there in the claims before us?” Mayo, 566
U.S. at 78.

It has been clear since Alice that a claimed invention’s
use of the ineligible concept to which it is directed cannot
supply the inventive concept that renders the invention
“significantly more” than that ineligible concept. In Alice,
the Supreme Court held that claims directed to a computer-implemented
scheme for mitigating settlement risks
claimed a patent-ineligible abstract idea. 134 S. Ct. at
2352, 2355–56. Some of the claims at issue covered
computer systems configured to mitigate risks through
various financial transactions. Id. After determining
that those claims were directed to the abstract idea of
intermediated settlement, the Court considered whether
the recitation of a generic computer added “significantly
more” to the claims. Id. at 2357. Critically, the Court did
not consider whether it was well-understood, routine, and
conventional to execute the claimed intermediated settlement
method on a generic computer. Instead, the
Court only assessed whether the claim limitations other
than the invention’s use of the ineligible concept to which
it was directed were well-understood, routine and conventional.
Id. at 2359–60.
Our precedent has consistently employed this same
approach. If a claim’s only “inventive concept” is the
application of an abstract idea using conventional and
well-understood techniques, the claim has not been transformed
into a patent-eligible application of an abstract
idea. See, e.g., Berkheimer, 881 F.3d at 1370 (holding
claims lacked an inventive concept because they “amount
to no more than performing the abstract idea of parsing
and comparing data with conventional computer components”);
Affinity Labs of Tex., LLC v. DIRECTV, LLC, 838
F.3d 1253, 1262 (Fed. Cir. 2016) (holding a claim lacked
an inventive concept because it “simply recites the use of
generic features . . . as well as routine functions . . . to
implement the underlying idea”); cf. Ariosa, 788 F.3d at
1379–80 (rejecting the argument that a newly discovered
natural phenomenon can supply an inventive concept).

Here, the only alleged unconventional feature of BSG
Tech’s claims is the requirement that users are guided by
summary comparison usage information or relative historical
usage information. But this simply restates what
we have already determined is an abstract idea. At Alice
step two, it is irrelevant whether considering historical
usage information while inputting data may have been
non-routine or unconventional as a factual matter. As a
matter of law, narrowing or reformulating an abstract
idea does not add “significantly more” to it. See SAP Am.,
Inc. v. InvestPic, LLC, No. 2017-2081, slip op. at 14 (Fed.
Cir. Aug. 2, 2018) (“What is needed is an inventive con-
cept in the non-abstract application realm. . . .
[L]imitation of the claims to a particular field of information
. . . does not move the claims out of the realm of
abstract ideas.”). BSG Tech does not argue that other,
non-abstract features of the claimed inventions, alone or
in combination, are not well-understood, routine and
conventional database structures and activities. Accordingly,
the district court did not err in determining that the
asserted claims lack an inventive concept.

CAFC reverses ITC in Diebold case. Analysis of 112 paragraph 6.

The outcome

We conclude that the term “cheque standby unit” in
the ’235 patent is a means-plus-function term subject to
35 U.S.C. § 112, para. 6, which lacks corresponding structure
disclosed in the specification. We therefore reverse
the Commission’s finding that Diebold violated § 337.

Diebold's argument:

Diebold argues on appeal that “cheque standby unit”
is a purely functional term that connotes no specific
structure and is therefore subject to § 112, para. 6.2
Specifically, it contends that the word “unit” is a “generic
nonce word” akin to “‘mechanism,’ ‘element,’ ‘device,’ and
other nonce words that reflect nothing more than verbal
constructs,” Appellant Br. 30 (quoting Williamson v.
Citrix Online, LLC, 792 F.3d 1339, 1350 (Fed. Cir. 2015)
(en banc)), and highlights that the ’235 patent recites
thirteen different “unit” elements in the claims, each of
which has a unique function. Diebold explains that the
specification includes no discussion of a specific structure
of the “cheque standby unit,” and instead defines the term
exclusively by its function and location. It then points out
that Hyosung’s expert did not testify that the term
“cheque standby unit” connotes sufficiently definite structure,
but instead testified that the term encompasses all
structures capable of fulfilling the function of temporarily
holding checks pending the customer confirming the
deposit, including a nonexhaustive list of structures as
varied as a “suction cup,” a “trap door,” and a “drum.”

Footnote 3 addresses incorporation by reference issues:

At oral argument, counsel for the Commission for
the first time mentioned a patent application incorporated
by reference in the ’235 patent’s specification, arguing
that element 114 of this incorporated patent application,
referred to as a “temporary standby unit,” shows a structure
corresponding to the “cheque standby unit.” Oral
Arg. at 18:14–19:33, available at
17-2553.mp3 (referencing J.A. 5585). Putting aside the
question of waiver, counsel admitted that the section of
the ’235 patent in which this application is incorporated is
directed only to the invention’s tripartite sensors. Id. at
21:15–26. The extent to which material has been incorporated
by reference into a host document is a question of
law, Advanced Display Systems, Inc. v. Kent State University,
212 F.3d 1272, 1283 (Fed. Cir. 2000), and we conclude
that the ’235 patent’s incorporation of this applicaapplication
expressly for its “detailed description” of two
sensors is insufficient to incorporate the application for its
“temporary standby unit,” ’235 patent, col. 5, ll. 3–6.
Counsel admitted, moreover, that the Commission did not
rely on this incorporated application, but relied instead on
the testimony of Dr. Howard. Oral Arg. at 20:00–07.

Both Teva and an 1859 case were cited:

Imposing such a
requirement would be inconsistent with the Supreme
Court’s guidance in Teva Pharmaceuticals, where the
Court held that, even in cases in which the district court
finds a need to look beyond the patent’s intrinsic evidence
and to consult extrinsic evidence, the district court must
still conduct a legal analysis: “whether a skilled artisan
would ascribe that same meaning to that term in the
context of the specific patent claim under review.” 135 S.
Ct. at 841. This is because “‘[e]xperts may be examined to
explain terms of art, and the state of the art, at any given
time,’ but they cannot be used to prove ‘the proper or legal
construction of any instrument of writing.’” Id. (alteration
in original) (quoting Winans v. N.Y. & Erie R. Co., 21
How. 88, 100–01 (1859)). In short, trial courts, after
deciding factual disputes, must interpret patent claims in
light of the facts that they found—“[t]his ultimate interpretation
is a legal conclusion,” and “appellate court[s]
can still review the [tribunal’s] ultimate construction of
the claim de novo.” Id. We specifically applied Teva’s
holding in the context of § 112, para. 6 in Skky, Inc. v.
MindGeek, s.a.r.l., 859 F.3d 1014 (Fed. Cir. 2017), explaining
that “[t]he task of determining whether the
relevant claim language contains a means-plus-function
limitation is . . . a question of law that we review de novo.”
Id. at 1019 (alteration in original) (quoting TriMed, Inc. v.
Stryker Corp., 514 F.3d 1256, 1259 (Fed. Cir. 2008)).

Raritan Computer was cited:

In Apex Inc. v. Raritan Computer, Inc., 325 F.3d 1364
(Fed. Cir. 2003), we considered whether claim limitations
reciting “circuits” were subject to § 112, ¶ 6. We began by
noting that the term “circuit,” which one dictionary defines
as “the combination of a number of electrical devices
and conductors that, when interconnected to form a
conducting path, fulfill some desired function,” “by itself
connotes some structure,” and explained that “the term
‘circuit’ with an appropriate identifier such as ‘interface,’
‘programming’ and ‘logic,’ certainly identifies some structural
meaning to one of ordinary skill in the art.” Id. at
1373. We then observed that nothing in the specification
or prosecution history was inconsistent with the ordinary
meaning of the term “circuit,” and pointed out that the
Raritan’s experts’ testimony “show[ed] only that the term
‘circuit’ is understood by one of ordinary skill in the art as
a very broad term and that one of the accused products
included several of the circuit elements.” Id. at 1373–74.
Here, however, the word “unit,” which the ’235 patent
uses to describe thirteen distinct components of the
invention, does not, standing alone, connote any particular
structure. Nor is sufficient structure imparted by
modifying the word “unit” with the words “cheque” and
“standby” or by specifying the location of the “cheque
standby unit.” The ’235 patent offers no guidance as to
what structure or class of structures “placed in the main
transfer path” might be capable of performing the function
of holding checks pending user instructions.

Of law

“Structure disclosed in the specification qualifies as
‘corresponding structure’ if the intrinsic evidence clearly
links or associates that structure to the function recited in
the claim.” Williamson, 792 F.3d at 1352 (citing Noah
Sys., Inc. v. Intuit Inc., 675 F.3d 1302, 1311 (Fed. Cir.
2012)). “Even if the specification discloses corresponding
structure, the disclosure must be of ‘adequate’ corresponding
structure to achieve the claimed function.” Id. (citation
omitted). Thus, under § 112, paras. 2 and 6, if a
person of ordinary skill in the art would be unable to
recognize the structure in the specification and associate
it with the corresponding function in the claim, a meansplus-function
clause is indefinite. Id. (citation omitted).

CAFC affirms exceptional case designation, but not fees awarded, in Rembrandt case

The outcome:

Rembrandt appeals both the district court’s exceptional-case
determination and its fee award. We conclude
that the district court did not abuse its discretion in
deeming this case exceptional, but that the court erred by
failing to analyze fully the connection between the fees
awarded and Rembrandt’s misconduct. We thus affirm
the district court’s exceptional-case determination, vacate
the district court’s fee award, and remand for further

As to fees:

Rembrandt also takes issue with the district court’s
award of $51 million in attorney fees. Rembrandt raises
no specific objections to Appellees’ tabulations of the
hours they expended; nor does Rembrandt contend that
Appellees should have calculated fees using a lower
hourly rate. Rembrandt instead argues that the fee
award is excessive and unreasonable because the district
court failed to establish a causal connection between the
claimed misconduct and the fees awarded. We agree.


But, critically, the amount of
the award must bear some relation to the extent of the
misconduct. Rambus, 318 F.3d at 1106. The district
court must explain that relationship, at least to the extent


The district court, by and large, did not even attempt
to assess which issues the claimed misconduct affected. It
specifically addressed the fees Appellees incurred relating
to the ’627 patent, which Appellees had listed separately
in their proposed orders. Second Fees Order, at 2 n.1.
But the district court did not establish a causal connection
between the misconduct and those fees, and it did not
offer any other reason for its fee award. Id. And, even
though the district court explained why it awarded the
attorney fees that Adelphia incurred defending against
Rembrandt in bankruptcy court, it again failed to connect
the misconduct with Adelphia’s fees. Nowhere did the
district court address the requisite “causal connection” it
was required to find between the misconduct and the fees
it awarded. Goodyear, 137 S. Ct. at 1187.


The most appropriate course, therefore, is to remand
for the district court to determine in the first instance
how much of the claimed fees Rembrandt should pay.
This does not require a tedious, line-by-line investigation
of the hours Appellees expended. As the Supreme Court
recently explained in Goodyear, “‘[t]he essential goal’ in
shifting fees’ is ‘to do rough justice, not to achieve auditing
perfection.’” Id. (quoting Fox v. Vice, 563 U.S. 826,
838 (2011)).
“The court may decide, for example, that all
(or a set percentage) of a particular category of expenses—
say, for expert discovery—were incurred solely because of
a litigant’s bad-faith conduct.” Id. “And such judgments,
in light of the trial court’s ‘superior understanding of the
litigation,’ are entitled to substantial deference on appeal.”
Id. (quoting Hensley, 461 U.S. at 437).

Berkheimer guidance: "It depends on what the meaning of the word 'new' is."

On August 17, 2018, President Clinton introduced one of the more interesting "word issues" of all time, concerning the meaning of the word "is."
In context, the relevant exchanges:

Q: Mr. President, I want to, before I go into a new subject area, briefly go over something you were talking about with Mr. Bittman. The statement of your attorney, Mr. Bennett, at Paula Jones deposition, "Counsel is fully aware" – it's page 54, line 5 – "Counsel is fully aware that Ms. Lewinsky has filed, has an affidavit which they are in possession of saying that there is absolutely no sex of any kind in any manner, shape or form, with President Clinton". That statement is made by your attorney in front Judge Susan Webber Wright, correct?

Clinton: That’s correct.

Q: That statement is a completely false statement. Whether or not Mr. Bennett knew of your relationship with Ms. Lewinsky, the statement that there was "no sex of any kind in any manner, shape or form, with President Clinton," was an utterly false statement. Is that correct?

Clinton: It depends on what the meaning of the word "is" is. If the – if he – if "is" means is and never has been that is not – that is one thing. If it means there is none, that was a completely true statement. But, as I have testified, and I'd like to testify again, this is – it is somewhat unusual for a client to be asked about his lawyer's statements, instead of the other way around. I was not paying a great deal of attention to this exchange. I was focusing on my own testimony…]

[See, for example,]

About twenty years later, related to 83 FR 17536 ( April 20, 2018 ), the U.S. Patent Office asks us, by August 20, 2018, to present comments concerning guidance on subject matter eligibility, specifically pertaining to Berkheimer v. HP, en banc rehearing denied, 890 F.3d 1369 (May 31, 2018).

The current patent issue might be stated by Clinton to be

"It depends on what the meaning of the word 'new' is."

One notes that 35 USC 101 (but not 35 USC 102) contains the word "new":

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof may obtain a patent therefor, subject to the conditions and requirements of this title.

The particular issue: how can a patent claim directed to otherwise ineligible matter, be transformed to a patent-eligible state by adding an inventive concept beyond “well-understood, routine, conventional activity previously engaged in by researchers in the field.”[Mayo v. Prometheus, 566 U.S. 66 (2012)]

Of some historical relation, contemplate the earlier Diehr case.

The priority date for what became the Diehr patent is May 23, 1974. At this point in time, mini-computers such as the PDP-8 were well-established in both academic and industrial laboratories. They could be fitted with analog to digital converters, which ultimately could read, and input, signals from thermocouples, so that temperature readings from external experiments could be made available for rapid calculations.

The first claim of Diehr involved making temperature measurements with a thermocouple, and using these measurements to make calculations via the Arrhenius equation to predict a cure time:

A method of operating a rubber-molding press for precision molded compounds with the aid of a digital computer, comprising:
• providing said computer with a data base for said press including at least, natural logarithm conversion data (ln), the activation energy constant (C) unique to each batch of said compound being molded, and a constant (x) dependent upon the geometry of the particular mold of the press,
• initiating an interval timer in said computer upon the closure of the press for monitoring the elapsed time of said closure,
• constantly determining the temperature (Z) of the mold at a location closely adjacent to the mold cavity in the press during molding,
• constantly providing the computer with the temperature (Z),
• repetitively calculating in the computer, at frequent intervals during each cure, the Arrhenius equation for reaction time during the cure, which is
where v is the total required cure time,
• repetitively comparing in the computer at said frequent intervals during the cure each said calculation of the total required cure time calculated with the Arrhenius equation and said elapsed time, and
• opening the press automatically when a said comparison indicates equivalence


Diehr’s reply brief emphasized the importance of the rapid computer calculations: “Constant recalculations along with continuous determinations of the actual temperatures, is the key feature here, not the equation or the fact of calculation.”

The use of minicomputers to take inputs from thermocouples and to perform calculations thereon was well-understood, routine, and conventional to a skilled artisan at the time of the patent (May 1974). Assuming Diehr was the first person in the micro-world of the rubber-curing business to recognize the value of lab computers in performing calculations (which is not clear on the record), does the claim become eligible under 101 for performing a species of the type of work well-known in the larger area of materials science? As a general matter, can a worker in one field import well-understood, routine, and conventional techniques of measurement or computation from another field to make an abstract idea or law of nature otherwise not patentable, patentable?

In 2012, the Mayo court analyzed the Diehr decision in terms of all the steps. It "found the overall process patent eligible because of the way the additional steps of the process [besides the equation] integrated the equation into the process as a whole." Nothing "suggested that all these steps, or at least the combination of those steps, were in context obvious, already in use, or purely conventional."

Later, the Alice court gave a different explanation:

In Diehr, by contrast [with Flook], we held that a computer-implemented process for curing rubber was patent eligible, but not because it involved a computer. The claim employed a "well-known" mathematical equation, but it used that equation in a process designed to solve a technological problem in "conventional industry practice." The invention in Diehr used a "thermocouple" to record constant temperature measurements inside the rubber mold — something "the industry ha[d] not been able to obtain." The temperature measurements were then fed into a computer, which repeatedly recalculated the remaining cure time by using the mathematical equation. These additional steps, we recently explained, "transformed the process into an inventive application of the formula." Mayo...

Monday, August 13, 2018

“Plagiarism isn’t a mistake: it’s a choice.”

From kitgaru:

Needless to say, IGN staff aren’t taking the actions of Miucin too well, with Reviews Editor Dan Stapleton likening apology to Kevin Spacey’s flippant response to sexual assault allegations, stating that “Getting stabbed in the back and lied to doesn’t bring out my best qualities.” PC Editor Tom Marks added to this with his own post to make it clear that “plagiarism isn’t a mistake: it’s a choice.”

link: Ex-IGN editor removes response to plagiarism accusations after more examples come to light

CAFC addresses inventorship issues in Pappalardo case

There was an interesting fact pattern in the PAPPALARDO case:

As alleged in the Amended Complaint, Mr. Pappalardo
met Ms. Stevins at a pharmaceutical products trade
show and disclosed to her a concept for a new product.
See J.A. 55; see also Appellant’s Br. 13 (specifying product
was related to liquid and solid cannabis delivery systems).
The Amended Complaint alleges Ms. Stevins falsely
stated that she had access to funding from a network of
investors for the product, and entered into a business
relationship with Mr. Pappalardo to commercialize the
product. See J.A. 55−56. Ms. Stevins recommended filing
the ’597 application, which named Ms. Stevins as a joint
inventor. See J.A. 56. The ’597 application remains
pending. See J.A. 56.

According to Mr. Pappalardo, Ms. Stevins “attempted
to independently . . . exploit” his technology. J.A. 59. Mr.
Pappalardo then sued Ms. Stevins, asserting claims of
fraud and negligent representation (Counts I and II), and
seeking declaratory judgment of sole inventorship (Count
III).1 See J.A. 56−61. The District Court dismissed the
declaratory judgment claim on the grounds that it lacked
jurisdiction to hear claims for correction of inventorship
for a pending patent application, Pappalardo, 2017 WL
4553919, at *2 (citing 35 U.S.C. § 256 (2012) (“Whenever
through error a person is named in an issued patent as
the inventor . . . [, a] court . . . may order correction of the
patent . . . .” (emphasis added))), and the state law claims
for fraud and negligent representation on the grounds
that, inter alia, they were also “contingent on” the U.S.
Patent and Trademark Office’s (“USPTO”) determination
on the ’597 application, id. at *3. The District Court also
held that, “[e]ven setting aside this jurisdictional defect,”
it was “hard-pressed” to find that the state law claims
were pleaded with sufficiency pursuant to Federal Rule of
Civil Procedure 12(b)(6). Id.

The CAFC noted:

However, because the “true nature” of
Mr. Pappalardo’s inventorship claim is for relief pursuant
to federal law, specifically 35 U.S.C. § 256, “we will accept
that [Mr. Pappalardo] pleaded an action for correction of
inventorship.” Larson v. Correct Craft, Inc., 569 F.3d
1319, 1325 (Fed. Cir. 2009); see HIF Bio, 600 F.3d at
1352−53 (characterizing claims pleaded as state law
declaratory judgments more properly as correction of
inventorship claims pursuant to § 256). Accordingly, the
District Court had subject matter jurisdiction over this
claim “[b]ecause inventorship is a unique question of
patent law.” HIF Bio, 600 F.3d at 1353; see Bd. of Regents,
Univ. of Tex. Sys. v. Nippon Tel. & Tel., 414 F.3d
1358, 1363 (Fed. Cir. 2005) (“[I]ssues of inventorship
. . . present sufficiently substantial questions of
federal patent law to support jurisdiction under [28
U.S.C. §] 1338(a).”).

However, we agree with the District Court’s dismissal
of the declaratory judgment claim because the claim “fails
to allege a cause of action upon which relief can be granted.”
Litecubes, LLC v. N. Light Prods., Inc., 523 F.3d
1353, 1361 (Fed. Cir. 2008); see Bell v. Hood, 327 U.S.
678, 682 (1946) (“Failure to state a proper cause of action
calls for a judgment on the merits and not for a dismissal
for want of jurisdiction.”). “A § 256 claim for correction of
inventorship does not accrue until the patent issues.” Hor
v. Chu, 699 F.3d 1331, 1335 (Fed. Cir. 2012). Moreover,
there are no other private causes of action available to a
litigant to challenge inventorship of a pending patent
application. See HIF Bio, 600 F.3d at 1353−54; see also
id. at 1353 (stating “Congress . . . has limited the avenues
by which such inventorship [of a pending patent application]
can be contested” to “the Director of the [USPTO]”).
Should a patent issue from the ’597 application, nothing
prevents Mr. Pappalardo from seeking declaratory judgment
relief on a correction of inventorship claim at that
time. See Hor, 699 F.3d at 1335−36. At this time, h

Sunday, August 12, 2018

CBS Sunday Morning on 12 August 2018 does cover story on exo-skeletons for humans

The cover story on August 12, done by Lee Cowan, was titled --Robotic exoskeletons: Helping paraplegics walk again --
The company ReWalk was mentioned; a patent to ReWalk:

Patent number: 9526668

Abstract: An exoskeleton bracing system includes: a trunk support for affixing to the trunk of a disabled person and leg braces for connecting to the legs of the person, each leg brace including limb segment braces. Motorized joints are adapted to provide relative angular movement between the limb segment braces of the leg braces and between the leg braces and the trunk support. One or more ground force sensors are designed to sense ground force exerted on each of the leg braces. The system also includes a controller for receiving sensed signals from said one or more ground force sensors, with an algorithm for identifying a stance from the sensed signals and, based on the identified stance, actuating the motorized joints to perform an action relating to a mode of locomotion selected from a set of predefined actions corresponding to the identified stance.

Filed: May 14, 2013
Date of Patent Issuance: December 27, 2016
Assignee: ReWalk Robotics Ltd.
Inventors: Amit Goffer, Chaya Zilberstein

The episode had an interview with Petula Clark.

The moment of nature was sandpipers in Wolfville, Nova Scotia.

Sunday, August 05, 2018

CBS "Sunday Morning" on 5 August 2018 does provocative story on maternal mortality

CBS Sunday Morning on August 5, 2018 was a study in contrasts. Erin Moriarity did "Maternal mortality: An American crisis", which could easily have been a hit on "60 Minutes." It preceded a puff piece by Jim Gaffigan on the need for a good nap, which joined other puff pieces on truffle-seeking dogs and sandboarding.

Some text from "maternal mortality:"

Moriarty asked, "And where do we compare to other developed countries, like Great Britain, Canada?"

"The United States is ranked 46th when it comes to maternal mortality. That's behind countries like Saudi Arabia and Kazakhstan."

In the U.S., that means at least two women are dying every day. And it's not just deaths on the rise. So are "near deaths" … 60,000 a year across the country.


Moriarty asked, "Why? You're not talking about access to healthcare, you're not talking about money or education."

"No, and this is gonna be hard to hear: we believe black women less when they express concerns about the symptoms they're having, particularly around pain. And that's the common thread in all of the stories we've been hearing in the media, including Serena Williams."

The cover story "Drowning in a Sea of Plastic" was of interest but not as scary or as timely as "Maternal mortality." Pogue made reference to the film "Plastic China," which led to a politically-based reversal of Chinese policy on accepting plastics, effective January 2018. In terms of great misunderstandings, a review for "Plastic China" had stated:

I learned a bit about plastic recycling some twenty years ago when for two months I walked the streets of the beach cities in the Los Angeles area collecting bottles and cans. I found out then that the plastic that was not deposit bottles was gathered into great shipping crates and sold to China. In turn many American companies bought the resulting pellets from China! This film shows why it was economic to ship the plastic waste to China and then effectively speaking buy back a value-added product. Quite simply the labor costs were and are so much less.

Curiously this is an uplifting doc with almost no political message. Because the people are shown going about their daily lives we come to feel we know them, and indeed their hopes and dreams and the way they live with one another is very much like people everywhere.

Pogue's take would be the opposite.

FoxNews reported on 21 June 2018:

China, which has imported 45 percent of the world’s plastic since 1992 for recycling, banned the import of non-industrial waste beginning this year. Therefore, tens of millions of yogurt cups, water bottles, containers and plastic bags now have nowhere to go.

As the Science Advances study notes, plastic packaging and single-use plastics tend to enter the waste stream, contributing to a total of 6.3 billion metric tons of plastic waste generated worldwide. Some of that waste is recycled, but the overwhelming majority ends up in landfills or polluting our oceans.

“We know from our previous studies that only 9 percent of all plastic ever produced has been recycled, and the majority of it ends up in landfills or the natural environment,” Jenna Jambeck, associate professor in UGA’s College of engineering and co-author of the study, told UGA News.

Almanac did "American Bandstand," which went national on ABC on August 5, 1957 and remained national for thirty years, until 1987. MTV launched on August 1, 1981. Just as "American Bandstand" died off, MTV is sagging; MTV's ratings had been said to be failing systematically, as younger viewers increasingly shift toward other media platforms, with yearly ratings drops as high as 29% (wikipedia).

Faith Salie did a piece on Dox Thrash, which obliquely touched on innovation. From the text:

Most printmakers start with a light surface and add dark layers. But Thrash did the opposite
– scraping away the dark to create lighter grays and whites. He named the technique
after his mother, calling it "the Opheliagraph."

"Sunday Morning" said this is also termed carborundum mezzotint. Note wikipedia states that this was invented in 1952 by Henri Goetz, an American abstract artist living in Paris. states: Originally, Thrash wanted to name this new technique the “Opheliagraph” for his mother, who died in 1936.

Of interest in the Thrash story:

"I want Dox Thrash now to be seen as one of our great American artists," said Hammond.

"Not African American?" asked Salie.

"No, American artist who tells wonderful, important, pivotal stories about American history, American life."

Thrash had connections to Chicago and Philadelphia.

The moment of nature was not particularly unusual: wild horses on Assoteague Island, Maryland.

***UPDATE on recycling (15 Aug 2018):

Garbage companies are refusing your recycling. The trade war with China will make it worse with text:

China had been a big buyer of reclaimed refuse but recently tightened its rules on the products it accepts, requiring the various materials to be rigorously separated and much cleaner than in the past. The country is also threatening to impose a tariff on trash amid a broadening trade war with the United States, which could ding recycling companies.

“They are shutting the door on a lot of materials,” said Kimberly Scheibly, director of compliance and customer relations at Marin Sanitary Service in San Rafael, where mixed paper has been accumulating for months as the firm looks for a buyer. Markets like Vietnam and Mexico have opened up, but due to their smaller size, they often get inundated with material and can’t take more, she said.


As part of the escalating trade war, China announced this month that it would impose a tariff of 25 percent on $16 billion worth of goods, including paper waste, Reuters reported. That has Abreu concerned, because that means recycling centers may have to pay more for materials sold to China.

“The tariff is another layer on top of the (rules) that they already adopted,” Abreu said. “It’s like getting two punches instead of one.”

Saturday, August 04, 2018


From the patent application:

[0015] The present disclosure relates to generating and/or rendering a user interface upon a display of a device that displays information related to various types of tasks. For example, a task can be related to the fulfillment process of electronic commerce orders by personnel or workers in a fulfillment center. Such a task can also be related to delivery of a parcel by a package delivery service. The present disclosure also relates to determining a location of a worker within the fulfillment center, which can facilitate rendering information on a user interface on the display to facilitate a given task. user interface can be rendered and displayed by a wearable computing device, such as augmented reality glasses, that overlay a user interface over a field of view of a fulfillment center worker.

[0016] For example, if a location of a worker within a fulfillment center can be determined, location-specific information, such as, for example, turn-by-turn directions to a destination within the fulfillment center, can be rendered in the user interface. A destination within the fulfillment center can include a particular floor, row, shelf, bin, or a particular item or product that is stocked within the fulfillment center. Accordingly, embodiments of the disclosure can facilitate providing various types of information to a worker in a fulfillment center in a user interface that is rendered by a wearable computing device, where the information is also based at least in part on the location of the user as detected in accordance with embodiments described herein.


[0025] The user interface 105 can also be updated in response to the changing orientation of the wearable computing device 103. Because the wearable computing device 103 can take the form of augmented reality glasses that are worn on the user's head and in which the user interface 105 is rendered upon one or more lenses of the augmented reality glasses, it may be the case that the visual indicator 109 requires updating as the user moves his or her head while moving through the fulfillment center as well as when the user is standing still within the fulfillment center. Accordingly, the wearable computing device 103 can also be equipped with one or more sensors that can detect movement, acceleration,
orientation, and other aspects of the position of the device.


[0048] The wearable computing device 103 can also be configured with wireless communication capabilities such as wireless local area network (WLAN) capability that can be employed to facilitate communications with the computing environment 303 via the network 309. Additionally, the wearable computing device 103 can also be equipped with personal area network (PAN) wireless communications capabilities such as a Bluetooth capability. In any form, the wireless communications capabilities of the wearable computing device 103 can allow the wearable computing device 103 to detect location beacons that are positioned throughout the fulfillment center 200. A location beacon can comprise a device that emits a wireless signal indicating a location within the fulfillment center 200. Such a location beacon can emit a location identifier that can be captured by the wireless communications capabilities of the wearable computing device 103 and in turn by the client application 381.

[0049] The wearable computing device 103 can also be equipped with one or more position sensors 385 that can provide information about orientation and/or movement of the wearable computing device 103. For example, position sensors 385 can include accelerometers, altimeters, speedometers, or other sensors that can provide pitch data, yaw data, roll data, velocity, acceleration, or other information related to movement and orientation of the wearable computing device 103. In one embodiment, the wearable computing device 103 can execute an operating system that provides an application programming interface (API) that provides API calls with which the client application 381 can access information about device position and/or orientation or other data obtained by the position sensors 385.

Taking notes from a lecture, or copying notes; is this plagiarism?

There was an odd post on (alleged) plagiarism by police recruits in Cleveland, Ohio. Relevant text:

An investigation is underway into 15 Cleveland police recruits following alleged irregularities involving plagiarism found in their Ohio Peace Officer Training Academy (OPOTA) required notebooks.

The notebooks are required by the police academy and are used to take the final exam the cadets need to pass in order to become sworn officers, a police source said. Each cadet is required to take notes during class and then transfer their notes to an OPOTA notebook. The class notebooks are regularly inspected by instructors.

The investigation was ordered when the notebooks were inspected and signs of plagiarism were found, according to a police source. Details surrounding what was allegedly plagiarized were not released.

If the recruits were making notes from the same class, one would infer that the notes would necessarily bear substantial similarity, even if the recruits took the notes independently. And, in taking notes, all the recruits are basically copying from the lecture. Is this the kind of "plagiarism" we want to punish?


Friday, August 03, 2018

JTEKT case: standing requires that a planned product create a substantial risk of infringement

The outcome was "no standing":

GKN Automotive LTD (“GKN”) owns U.S. Patent No.
8,215,440 (“the ’440 patent”). In inter partes review
(“IPR”), the Patent Trial and Appeal Board (“the Board”)
found claims 2 and 3 of the ’440 patent not unpatentable.
JTEKT Corporation (“JTEKT”), the petitioner in the IPR,
appealed. Because JTEKT lacks standing to appeal, we
dismiss the appeal.

The Consumer Watchdog/WARF case is cited:

Under the IPR statute, any person or entity may petition
the Patent Office to institute an IPR proceeding. 35
U.S.C. § 311(a). There is no requirement that the petitioner
have Article III standing, as “[p]arties that initiate
[IPRs] need not have a concrete stake in the outcome;
indeed, they may lack constitutional standing.” Cuozzo
Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2143–44 (2016).
We have similarly concluded that “Article III standing is
not necessarily a requirement to appear before an administrative
agency.” Consumer Watchdog v. Wis. Alumni
Research Found.,
753 F.3d 1258, 1261 (Fed. Cir. 2014)
(citation omitted). The statute also provides that an
unsuccessful petitioner may appeal an adverse final
written decision. 35 U.S.C. § 141(c) (“A party to an inter
partes review or a post-grant review who is dissatisfied
with the final written decision of the Patent Trial and
Appeal Board . . . may appeal the Board’s decision . . . to
the United States Court of Appeals for the Federal Circuit.”).


Similarly, in Consumer Watchdog, a nonprofit organization
(Consumer Watchdog) petitioned for IPR concerning
a patent for embryonic stem cells, but was
unsuccessful before the Board. Consumer Watchdog, 753
F.3d. at 1260. Consumer Watchdog appealed to this
court. Consumer Watchdog did not “allege[] any involvement
in research or commercial activities involving human
embryonic stem cells. Nor . . . that it [was] an actual
or prospective competitor of [the patent owner] or licensee.”
Id. We held that there was no standing “[b]ecause
Consumer Watchdog [did] not establish[] an injury in
fact.” Id. These cases stressed that the “obligation to
establish an injury in fact” for appellants “remains firm.”
Phigenix, 845 F.3d. at 1172 n.2.

In THIS case:

As the party seeking judicial review, JTEKT has the
burden of establishing that it possesses the requisite
injury. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332,
342 (2006). Thus, in IPR appeals, “an appellant must . . .
supply the requisite proof of an injury in fact when it
seeks review of an agency’s final action in a federal court,”
by creating a necessary record in this court, if the record
before the Board does not establish standing. Phigenix,
845 F.3d at 1171–72. When the record before the Board is
inadequate, the appellants “must supplement the record
to the extent necessary to explain and substantiate its
entitlement to judicial review,” such as by submitting
“affidavits or other evidence to demonstrate its standing.”
Id. at 1173 (citations omitted).

The fact that JTEKT has no product on the market at
the present time does not preclude Article III standing,
either in IPRs or in declaratory judgment actions. See,
e.g., Altaire Pharms., Inc. v. Paragon Bioteck, Inc., 889
F.3d 1274, 1280–83 (Fed. Cir. 2018). Both IPRs and
declaratory judgment actions enable a party to secure a
judicial determination in advance of actual, liabilitycreating
injury. But where the party relies on potential
infringement liability as a basis for injury in fact, but is
not currently engaging in infringing activity, it must
establish that it has concrete plans for future activity that
creates a substantial risk of future infringement or likely
cause the patentee to assert a claim of infringement.
While JTEKT has submitted two declarations in support
of its standing, JTEKT’s problem is that these declarations
do not establish that its planned product would
create a substantial risk of infringing claims 2 or 3 of
GKN’s ’440 patent or likely lead to charges of infringement.
GKN has not alleged infringement, see PPG Indus.,
Inc. v. Valspar Sourcing, Inc., 679 F. App’x 1002, 1004
(Fed. Cir. 2017) (non-precedential), and, while JTEKT
and GKN are competitors generally, JTEKT expressly
conceded that “no product is yet finalized.” J.A. 1642, at ¶
13. JTEKT’s product is in development and “will continue
to evolve.” J.A. 1642, at ¶ 15. The declaration of Mikiharu
Oyabu, JTEKT’s Chief Engineer, admits that
“JTEKT is [still] currently validating its design, including
tuning and conducting customer demonstrations. . . . [t]he
concept will continue to evolve and may change until it is
completely finalized.” J.A. 1642, at ¶¶ 14–15.

The bottom line:

Because JTEKT has failed to establish an actual injury
sufficient to confer Article III standing, we dismiss this

Thursday, August 02, 2018

In GLG Farms, BOTH parties agree on error by district court, but decision stands

In GLG Farms:

As an initial matter, we note that the parties agree
that the district court erred by replacing the phrase
“adjacent the [first/second] side edge” with the phrase “on
the [first/second] side edge.” According to the parties, the
word “adjacent” encompasses both “on” and “near” in this
particular context. See Oral Arg. at 36:16–38:10, GLG
Farms LLC v. Brandt Agric. Prods., Ltd. (No. 2017-1937),

We nevertheless agree with the court’s construction
insofar as it requires the drive assemblies to be mounted
between the end walls. The ’131 patent discloses a single
embodiment which the patent consistently describes as
having its drive assemblies and wheels located on the
base wall between the end walls. See, e.g., ’131 patent,
Abstract (“Each drive assembly is mounted approximately
midway across the base wall . . . .”), fig.2 (depicting drive
wheels mounted between the end walls), col. 3, ll. 61–65
(stating that the wheels can be moved “along the inclined
wall” of the base wall). These disclosures stand in stark
contrast to the patent’s depiction of the prior art, which
shows that the only wheels on the hopper are mounted to
the outside of the end walls. S

CAFC in SAP America: We may assume that the techniques claimed are “[g]roundbreaking, innovative, or even brilliant,” but that is not enough for eligibility.

The beginning of the SAP America decision:

InvestPic, LLC’s U.S. Patent No. 6,349,291 describes
and claims systems and methods for performing certain
statistical analyses of investment information. We addressed
this patent in In re Varma, 816 F.3d 1352 (Fed.
Cir. 2016), where we construed key claim terms and
partly reversed and partly vacated the Patent Trial and
Appeal Board’s cancellations of various claims in two
reexamination proceedings involving issues of anticipation
and obviousness under 35 U.S.C. §§ 102 and 103.
The present appeal involves a declaratory judgment
action filed in 2016 by SAP America, Inc., which alleges,
among other things, that the claims of the ’291 patent are
invalid because their subject matter is ineligible for
patenting under 35 U.S.C. § 101. When SAP moved for a
judgment on the pleadings on that ground, the district
court granted the motion, holding all claims ineligible
under § 101 and hence invalid. SAP Am., Inc. v. InvestPic,
LLC, 260 F. Supp. 3d 705, 718–19 (N.D. Tex.
We affirm. We may assume that the techniques
claimed are “[g]roundbreaking, innovative, or even brilliant,”
but that is not enough for eligibility. Ass’n for
Molecular Pathology v. Myriad Genetics, Inc., 569 U.S.
576, 591 (2013); accord buySAFE, Inc. v. Google, Inc., 765
F.3d 1350, 1352 (Fed. Cir. 2014). Nor is it enough for
subject-matter eligibility that claimed techniques be novel
and nonobvious in light of prior art, passing muster under
35 U.S.C. §§ 102 and 103. See Mayo Collaborative Servs.
v. Prometheus Labs., Inc., 566 U.S. 66, 89–90 (2012);
Synopsys, Inc. v. Mentor Graphics Corp., 839 F.3d 1138,
1151 (Fed. Cir. 2016) (“[A] claim for a new abstract idea is
still an abstract idea. The search for a § 101 inventive
concept is thus distinct from demonstrating § 102 novelty.”);
Intellectual Ventures I LLC v. Symantec Corp., 838
F.3d 1307, 1315 (Fed. Cir. 2016) (same for obviousness)
(Symantec). The claims here are ineligible because their
innovation is an innovation in ineligible subject matter.
Their subject is nothing but a series of mathematical
calculations based on selected information and the
presentation of the results of those calculations (in the
plot of a probability distribution function). No matter
how much of an advance in the finance field the claims
recite, the advance lies entirely in the realm of abstract
ideas, with no plausibly alleged innovation in the nonabstract
application realm. An advance of that nature is
ineligible for patenting.